The Star reports today that the provincial legislature cabinet passed a new law on June 2 without any debate. That wouldn’t be such a big deal, except that it won’t even be published in The Ontario Gazette until July 2, 2010, after it’s revoked on June 28, 2010.

Considering the nature of the regulation, it’s worthy of closer scrutiny.

Everything described in… the definition of “public work” …is located in the area… including, without limitation and for greater certainty, every sidewalk in that area.
[emphasis added]

The area also happens to correspond with workplace of the largest concentration of lawyers in Canada. In fact, it’s also right next to what’s likely the public largest transit hub in Canada as well. But if you’re not from Toronto, and haven’t been subjected to being herded through narrow gates guarded by dozens of police officers over the past few days, this is what it looks like:

North-West Corner of Bay and Front St. in Toronto during rush hour (Photo Credit: Omar Ha-Redeye)

In other words, the sidewalk is all these people have. (For comparison, this is what it normally looks like). The regulation also extends the area for a 5 meter radius out from the line.

By designating the area as a public works, peace officers as defined under the Act, are given expansive powers,

(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;

(b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and

(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering.
[emphasis added]

Considering how we’re talking about the core of downtown Toronto here, it seems just a little draconian.

And what happens if you don’t obey?

Refusal to obey guard, etc.

5.(1)Every person who neglects or refuses to comply with a request or direction made under this Act by a guard or peace officer, and every person found upon a public work or any approach thereto without lawful authority, the proof whereof lies on him or her, is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months, or to both.

Or thrown in a cage.

Presumably subject to arrest under 5.(2). The Star also reports today that this is exactly what happened to the first person we can tell who was detained under the new regulation,

It is about 9 p.m. and he has just spent the past five hours sitting alone in a wire cage, on a metal bench, with few answers…

Vasey said he had been provided with legal information prior to the G20 from the Toronto Community Mobilization Network, an umbrella group supporting thousands of protesters descending on the city.

“But (police) told me there was this bylaw,” he said. “I didn’t know what they were talking about.”

Just so we’re clear, I do not participate in protests as a matter of principle. But I do regularly pass through this zone, as do thousands of other Torontonians. I just want my city back.

In the meantime, I’ll be leaving my city to avoid what looks like could be a very ugly stand-off between police and protesters who will not know about new police powers and the new ability to detain people summarily in what, until very recently, was the most public of public places. Protesters unaware of the new regulation will likely perceive police action as overly broad and without legal justification, only escalating the conflict.

If the intent of the regulation was to scare the rest of us, well it seems like it worked.

Comments

Well, it’s a regulation, so the Legislature had nothing to do with it. Cabinet makes regulations. The regulation is available on e-Laws in the normal way, i.e. associated with the statute under which it was made.

The Legislation Act, 2006, prevents a regulation from being enforced before publication online or in the Gazette, but one does not have to wait for the print publication.

That said, there sure wasn’t a lot of publicity about it, and it depends enormously on the discretion of the enforcing officers – in a way that would be less surprising for a more normal conception of ‘public work’ than a wide swath of downtown Toronto.

23.(2) Unless otherwise provided in a regulation or in the Act under which the regulation is made, a regulation is not effective against a person before the earliest of the following times:
1. When the person has actual notice of it.
2. The last instant of the day on which it is published on the e-Laws website.
3. The last instant of the day on which it is published in the print version of The Ontario Gazette. 2006, c. 21, Sched. F, s. 23 (2).

The copy of the regulation I linked above is functional, but it’s not connected to the Act. Although it would meet the requirement of s. 23, it still doesn’t seem prudent. To date it looks like actual notice is provided by police simply telling pedestrians there is a new law.

Still makes me wonder what would have happened if they tried to enforce this without the public finding out about it via the media.

Since when did Canada become a police-state? When did we agree to give up our freedoms and decision making? This absolutely flies in the face of what has made this country so great and attracteive to the rest of the world. I seriously wonder what the visiting dignitaries think when they see this government-enforced farming of citizens? This is the kind of thing we are used to reading about in other nations.

I digress, but not much. Indeed, this scares me. It should scare us all.

We do try to steer clear of polemics here on Slaw, which is likely a good thing. But this is simply more than I can stand. Much as I am loath to use the term, “fascist” is what comes to mind here, and not simply because of a “quiet”—if not secret–law that baldly usurps civil space and much of civil society, arrogating authority to a small group of state officials. Look around the city: armed men in uniforms, fenced in areas for those who “dissent,” all because one man has decided it should be so and has spent vast quantities of social resources to ensure it all goes precisely as he wills.

Rarely has so much been taken away from so many for the benefit of so few.

Open File appears to have broken the story last night, even before The Star.

They also have a first-hand account of the Vasey incident. Persons accompanying him requested the ability to contact a lawyer to confirm the existence and relevance of the Act, but were refused.

We both refused to give our names, we said we do not consent to a search. They said that under the Public Works Act they had the right to arrest us, search us and learn our names even without due cause, without charges… After that the four officers surrounded me and demanded that I also give them my identification and I asked them before doing so if I could phone a lawyer to clarify if this public works actually existed or if it had been passed because to my knowledge, it didn’t exist and it was an infringement on my rights.

I do have one concern about the constitutional validity of the legislation.

To me, it is perfectly fair and reasonable that if you want to enter a secure area, you should have to comply with a search. But this law appears to authorize arrest and search of a person even if that person decides to turn away and leave the area.

The law covers “attempts” to enter a public work. Thus, if a person simply walks towards (or gets too close) to the G20 security zone, then they are subject to a search. The person has no choice. Even if they change their mind and turn around, police are authorized to chase them down, stop them, and search them.

Since the person has decided to leave, the search would have nothing to do with security, and yet it would be authorized. To my mind that goes too far: it is a violation of s. 8 not justifiable under s. 1 of the Charter.

This aspect of the legislation does not appear to have been addressed in R. v. Campanella, posted in the comments by Mr. Chester above.

I’m no conspiracy theorist, so I’m not suggesting this will happen, but it seems to me hypothetically possible for the cabinet to declare all of Ontario to be a public work. Can we honestly say that that hypothetical scenario would pass constitutional muster?

Here’s another related update, this one on the sound cannons issue raised before.

D. M. Brown J. held in CCLA v. Toronto Police Service, released today, that the police can use the devices, but limited the decibel level for its use for communication with crowds, thereby avoiding the Charter infringements. But there was also some interesting commentary about the potential chilling effect of the devices,

[113] I conclude that the applicants have not demonstrated that a serious question exists for trial that the deployment of LRADs by the respondent police forces will work a “chilling effect” on the applicants‟ efforts to organize and hold lawful demonstrations or marches during the G20 Summit. The evidence filed by the applicants was highly speculative, anecdotal hearsay, and lacking in substance. Simply put, the evidence placed before me does not enable any reasonable prognostication about how many people may or may not attend the applicants‟ planned demonstration and march. Further, the cross-examinations of the applicants‟ affiants revealed that other causes might exist for any perceived difficulty in organizing the hoped-for turnout – e.g. the overall security measures taken for the G20 Summit, as well as the well-publicized risk of unlawful conduct by others. I see no evidentiary basis to support a causal link between the use of LRADs and any demonstrable “chilling effect” on the potential number of demonstrators at the applicants‟ activities this weekend.

As stated, I have no intent of being anywhere near any protests. But between these sound cannons being deployed and the new regulation, I’m pretty chilled about being anywhere near downtown Toronto, for whatever reason.

While this does seem a little draconian, I don’t think it’s as big a deal as the Toronto Star and some other people are making it. This regulation will be in effect for all of, what, 5 days? It’s not any kind of a pilot program either: it’s a rule that exists for a specified purpose and for a very limited amount of time. Given the amount of trouble-makers expected to descend on Toronto in the next couple of days, the police need to have the power right then and there to deal with it.

“Annon,” are not “troublemakers” also entitled to the full protection of the law?

The Premier and Police Chief have recently defended the measure as something the public would understand and appreciate. As a member of the non-protesting public that these laws are presumably enacted to protect, I do not feel any safer. In fact, I feel quite the opposite.

Protests may not be my chosen means of expression and association, but I value the freedom of others in my society to do so in a responsible manner. The protesters represent a wide variety of different interests, and cannot be accurately stereotyped in any way.

This Act was passed on September 22, 1939 – a few weeks after the British Empire declared war on Germany. To the best of our knowledge, there has not been one reported case of prosecution under this Act in the last thirty years. It has the potential to grant extraordinary powers to peace officers and other ‘guards’, and its archaic wording raises interpretation concerns that ought not to be borne by citizens at a time such as the G20…
It could also be the position of the government that the police needed additional powers during the G20. In that case, it appears highly inappropriate to enact regulations to an obsolete legal instrument without public consultation or announcement. By doing so, residents of Ontario have been misled about their rights and have been unwittingly subject to sanctions that have been enforced pursuant to the Act. Individuals have the right to know what their rights and obligations are. To expect them to consult E-Laws every night to understand the extent of new police powers is unreasonable and undermines respect for human dignity…
This regulation, however, came into effect well before the fence was secured, and individuals have had greatly reduced rights in this area since June 22nd. As a result, even though there are presumably no security concerns that would justify closing the fence early, we are already seeing a significant erosion of individuals’ civil liberties in this area. We have heard credible accounts of individuals who are simply walking along downtown streets being threatened with prosecution under the Public Works Protection Act even while they are outside what will eventually become the secured area. At least one person has already been arrested and charged. All of this has occurred before the fence was secured, while the downtown core was still supposedly open to normal public traffic…
Secretly drafting and passing regulations that substantially erode
democratic rights, and then enforcing these new laws without giving the public or legal community any warning. circumvents democratic accountability and puts innocent individuals at
risk of criminal arrest and conviction.

> “Annon,” are not “troublemakers” also entitled to the full protection of the law?

No, they’re not. People who destroy property and endanger lives are not worthy of any protection, they’re worthy of having the book thrown at them and being locked up for a long time. The fact that violence is not an appropriate means of expression was upheld by the Supreme Court of Canada in several cases. As a principle of criminal law, it’s intent (causing violence) that matters, not the motive (political protest).

Keep in mind: ordinary peaceful protesters have nothing to fear about this law. If violence is not the intent, there should be no reason to be within 5 meters of the fence, let alone trying to touch or scale the fence. Follow the law, use common sense, and there will be no need to apply this law. Unfortunately, no everyone will heed this advice, which is why this law is needed.

That presumes that they are guilty of violence before they are even violent. Hardly seems fair, especially in light of the Montebello incident, and expectations that law enforcement have adopted tactics under the Miami Model.

Keep in mind that many ordinary protesters are already feeling the brunt of the law and extraordinary police measures, irrespective of any threat of violence. Law enforcement from outside of the city appear ill-equipped to deal with issues of diversity and disability, an issue I had the opportunity to speak to hundreds of police officers and first responders about in 2006.

Most recently, there’s the case of Emomotimi Azorbo, a deaf protester who was prevented from communicating by sign language. The friend mentioned in that article will be starting law school this fall.

In my opinion, it’s exactly these kind of people that we need more of in the profession.

Yeah, I rad about Emomotimi Azorbo this morning. That was pretty messed up. But that’s overzealous enforcement, not a problem with the law per se.

As for the Miami model, that was an interesting read. I don’t see anything wrong with it, incidentally. Tactics used at Montebello are totally wrong (although it was never conclusively proven that those people were police officers, best they have is circumstantial evidence). But there’s nothing wrong with a Miami-style information campaign. The bottom line is protesters throw rocks, break windows, and assault people often enough for this to be a concern. People need to be told about this. The result of the protesters’ activities is destruction of property and injuries. Unless all protesters are willing to contribute to a fund that will compensate the victims of their idiocy, we need tear gas and other riot gear to keep them in check and keep destruction of property and personal injury to a minimum.

I don’t think there should be a “duty of care” of protesters for the actions of others at a protest, and definitely not any financial liability. Keep in mind that protests are as old as governments. When the Charter was enacted and included s. 2, all of these elements of potential violence were considered.

Azorbo is just one incident. We’re already getting reports of dozens of similar ones. In the long-term this only reaffirms disaffected elements of the population of their inability to successfully engage in the system in a legal and peaceful manner.

The Miami Model only antagonizes and aggravates protesters, alienating them further and increasing the risk of violence. Property owners potentially at risk for damage and their insurers should oppose it as an approach that inevitably costs them more. I’m certain there has to be a better way, working collaboratively with more reasonable elements of protest organizers – something I should write about in the future.